Ross v. State

• Decision Date: 06 November 1989
• Docket Number: No. CR,CR
• Citation: 300 Ark. 369,779 S.W.2d 161
• Parties: Vernon ROSS, Appellant, v. STATE of Arkansas, Appellee. 89-63.
• Court: Arkansas Supreme Court

Page 161

779 S.W.2d 161

300 Ark. 369

Vernon ROSS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 89-63.

Supreme Court of Arkansas.

Nov. 6, 1989.

W. Hunter Williams, Jr., Osceola, for appellant.

Joseph V. Svoboda, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

This is an appeal from the appellant's conviction of arson resulting in more than $100,000 in damages to the Osceola High School, three counts of burglary, and two counts of theft of property. Appellant was sentenced to serve a total of thirty-five (35) years in prison. On appeal, appellant argues twelve points of error. We find no error, and therefore affirm.

On December 2, 1987, around 1:00 a.m., a fire occurred at the Osceola High School in Mississippi County, Arkansas. The fire destroyed 22,000 square feet of the school and caused extensive water and smoke damage in the remaining parts. The library (with its 7,000 volumes), the cafeteria and the administrative area of the school were all completely destroyed. When the fire was extinguished, it was determined that several different fires were intentionally set in the building. There was also evidence of vandalism found inside the school. A display case containing old football jerseys was broken and books were thrown around the class rooms. In addition, a break-in at the Osceola Athletic Complex was discovered. A window was broken out and articles of athletic equipment were stolen. On that same day, a garage owned by Joe Harris, Jr., was burglarized, and, among other things, a gun and disk camera were taken.

After the foregoing crimes but on the same day, Billy Wright reported to the police that the appellant, Vernon Ross, and Jerry Walker had been to his trailer that morning bragging and laughing about burning down the high school. Wright told the police that these men had with them a gun, a disk camera and a bag containing athletic equipment, and they had left these objects in his trailer. Walker attempted to sell Wright the gun and admitted that it belonged to Joe Harris. Wright had used the camera to take pictures of Walker and Ross. The police went with Wright to retrieve the stolen objects from his trailer. The film in the camera was developed, and the appellant and Walker were identified in the pictures. Eddie Green, who also had been present when the appellant and the others were at Wright's trailer, gave a statement which corroborated Wright's account. After arresting Walker, the police were informed that the appellant and Yulandia Carruthers were at the Judge Motel. The policemen knocked on the appellant's motel room at 7:30 a.m. on December 3 and identified themselves. The appellant opened the door and was told that he was under arrest. The police officers did not have an arrest warrant. The appellant was read his rights and was transported to the police station. At 8:55 a.m., the appellant gave the police a statement about the arson and theft at the high school and the burglary and theft at Joe Harris's garage. Carruthers also gave the police a statement in which she admitted driving the appellant and Walker to the high school.

Appellant first argues that the trial court erred in denying his motion to suppress his statement because of the illegality of his arrest. A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed a felony. A.R.Cr.P. Rule 4.1. At the suppression hearing, the trial judge found that the police officers had probable cause to arrest the appellant. We agree.

Probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that a crime has been committed by the person suspected. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). The degree of proof sufficient to sustain a conviction is not required for probable cause to arrest. Id. All presumptions are favorable to the trial court's ruling on the legality of the arrest and the burden of demonstrating error rests on the appellant. Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987).

In the present case, the police officers knew that the fire at the Osceola High School was arson and that the athletic complex had been broken into and equipment had been stolen. In addition, they knew that a gun and camera had been stolen from Joe Harris's garage. Billy Wright told the police that the appellant and Walker had bragged about burning the school and that they had a gun, camera and athletic equipment with them. According to Wright's statement, Walker admitted that the gun belonged to Joe Harris. Eddie Green, who was also present at the trailer, corroborated Wright's statement. The police retrieved the stolen property at the trailer and Harris identified the gun. The film in the camera was developed and the pictures were of the appellant and Walker holding the stolen gun. Clearly, the police had probable cause to arrest the appellant.

We also find no merit in the appellant's argument that Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), dictates a finding that his arrest was illegal because the police entered his motel room. In Payton, two companion cases were heard by the Supreme Court involving police officers entering a suspect's home to make a warrantless arrest. One of these cases involved the police using crowbars to break into an apartment where no one was home. After breaking into the apartment, the police found a .30 caliber shell casing which was used at trial against the defendant. The second case involved a young child opening the door for the police. Before the suspect was given a chance to object, the police entered the house and arrested him. The Supreme Court found both of these entries by the police unacceptable and held that the fourth amendment prohibited the police from making a warrantless and nonconsensual entry into the suspect's home in order to make a routine felony arrest.

Clearly, the facts in the present case are distinguishable from those in Payton. Here, the appellant, himself, opened the door dressed only in a sheet. While he denied inviting the officers in, he also never suggests that he asked them to wait outside while he got dressed. Furthermore, one of the policemen, Larry Robinson, testified that the appellant did invite them into his room. As we have said numerous times, conflicts in testimony are for the trial judge to resolve, and the judge is not required to believe any witness's testimony, especially the testimony of the accused since he is the person most interested in the outcome of the proceedings. See, e.g., Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986).

We take this opportunity to dismiss two of the appellant's arguments concerning procedural aspects of his trial. Due to pretrial publicity, the appellant received a change of venue from the Osceola District of Mississippi County. In his motion for change of venue, the appellant, a black male, requested the trial be moved to Crittenden County, because it had a similar racial makeup as Osceola, where the crime occurred. The trial judge moved the trial to the Jonesboro District of Craighead County. Appellant made a motion for a second change of venue and presented statistical evidence showing the black and white population of the areas in question. He argued below, and now on appeal, that he was entitled to a change of venue to a district with a similar racial makeup as where the crime occurred. The trial court denied appellant's second motion. We summarily dismiss the appellant's argument, because he has failed to cite any authority to support his argument. This court will not consider arguments unsupported by convincing argument or authority. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Also, we note that the appellant failed to present evidence to the court which showed the number of black and white prospective jury panel members. Concerning another procedural point, the appellant argues that the trial court erred in refusing his motion for a bifurcated trial. He argues that he should be entitled not to testify during the guilt phase of the trial without waiving his right to address the jury about punishment in the sentencing phase of the trial. Here, the appellant testified at the trial and addressed the jury about being sorry for any wrongs he had committed. We allow bifurcated trials in capital murder cases, DWI cases and cases involving habitual offenders. However, we know of no authority, and the appellant cites none, which would call for a bifurcated trial in this instance.

The next five issues we will address concern the appellant's conviction for arson. First, the appellant argues that the trial court erred in refusing three arson instructions that he proffered. In regard to the common law presumption against arson, these proffered instructions informed the jury that the school fire must be presumed accidental and that the state must prove that the fire was caused by a willful act. The trial judge instructed the jury using the model instructions on arson, which informed the jury that the state must prove that the appellant started a fire with the purpose of destroying or otherwise damaging a vital public facility. See AMI Criminal, 1902. Instructions which do not conform to the model instructions should be given only when the trial judge finds the model instructions do not accurately state the law or do not contain a necessary instruction on the subject. Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985).

We first note that the appellant did not abstract any of the jury instructions. This court does not require an appellant to abstract all of the instructions given by the court as predicate to objection on appeal to failure of the trial court to give an instruction proffered. Newberry v. Johnson, 294 Ark. 455, 743 S.W.2d 811 (1988); Hunter v. State, 8...